Gayle v. Agee , 4 Port. 507 ( 1837 )

HOPKINS, C. J.

— This was .an action of assump-sit upon a note, for the payment of money.

The writ was executed upon Matthew Gayle and John Gayle, two of the makers of the note. rI he death of John Gayle was afterwards suggested, ar.d his administrators, Matthew Gayle and Jabez W. Huestis were made parties to the suit, by scire facias. The judgment was rendered against the administrators.

There is no declaration in the ease, and for the want of one, the judgment would be reversed.

As the cause of action survived against Matthew Gayle, the action ought to have been conducted against him alone, after the death of the other defendant. It was error, to make the administrators of J0lln Gayle, parties to the suit.^*

As no step was taken against the surviving defendant, after the death of Gayle was suggested, and the suit was conducted afterwards against his administrators, the action was discontinued against the surviving defendant.

The judgment is reversed.

GOLDTHW AITE, J., not sitting.

* aí'c. Dig. .259, §4.